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UNITED STATES OF AMERICA
Before the
Securities and Exchange Commission
Securities Act of 1933
Release No. 7237 / October 30, 1995
Securities and Exchange Act of 1934
Release No. 36433 / October 30, 1995
On October 30, 1995 the Commission instituted administrative
proceedings pursuant to Section 8A of the Securities Act of 1933
(the "Securities Act") and Sections 15(b)(6) and 21C of the
Securities Exchange Act of 1934 (the "Exchange Act") against
Nicholas P. Howard. In the Order the Division of Enforcement
(the "Division") alleges that from as early as December 1990
through at least November 1991, Howard caused and willfully
aided, abetted, counseled, commanded, induced or procured
violations of Section 17(a) of the Securities Act, Section 10(b)
of the Exchange Act and Rules 10b-5 and 10b-9, thereunder and
Section 17(a)(1) of the Investment Company Act of 1940 in
connection with a part or none offering by New Europe Hotels,
N.V. ("NEH") in January 1991 and a subsequent offering in
November 1991.
In the Order the Division alleges that James Capel Inc.
("JCI"), a registered broker-dealer, was the exclusive selling
agent in the U.S. for the NEH offerings. Howard, during the
relevant period, was associated with JCI, was the head of JCI's
European equity sales, and was a managing director of NEH. In
connection with the January 1991 NEH offering, the Division
alleges that to reach the minimum subscription of 2,000,000
shares, the Capel Group [an affiliated group of international
brokerage firms, including JCI] purchased 55,650 shares and took
100,000 additional shares in lieu of JCI's fees. Thirty thousand
shares held on the Capel Group's books on the settlement date for
a subsequent sale by JCI to a client were also counted towards
the minimum subscription. In addition, NEH arranged loan to
enable the entity engaged to manage NEH (the "Manager") to
purchase shares that were also counted towards the minimum
subscription. Finally, over a third of the subscription fees had
not been collected by the settlement date and complete payment
was not received for over a month after the settlement date.
The Division alleges that Howard was the individual
responsible for selling NEH shares to U.S. investors and
distributing offering materials to potential U.S. investors.
Howard knew that the minimum subscription in the January 1991
offering was being made up in part through JCI taking shares in
lieu of their fees and by a direct purchase by the Capel Group.
He also participated in and and approved NEH's decision to engage
in the loan arrangements with the Manager. In addition, Howard
was aware that the shares being held for the client were counted
towards the minimum subscription and that all settlement fees
were not timely received.
The Division also alleges that offering documents for both
NEH offerings failed to disclose the Capel Group's acquisition of
NEH shares in the January offering, the loan arrangements with
the Manager or the holding of shares on the Capel Group's books
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for the client. Howard, as head of JCI's European equity sales
and as a managing director of NEH, had responsibility for
ensuring that NEH's offering documents in both offerings were
accurate. The Division alleges that Howard knew or recklessly
disregarded the fact that the offering documents for both the
January and November NEH offerings failed to disclose the
material facts of which he was aware.
Finally the Division alleges that Howard improperly sold NEH
shares from the Capel Group's books to a registered investment
company with which JCI had a contract to provide advice and
recommendations regarding the purchase and sale of certain
securities. The Division alleges that Howard knew or was
reckless in not knowing that the sale of NEH stock to the fund
was improper.
A public hearing for the purpose of taking evidence will be
held at a time and place to be fixed before an Administrative Law
Judge. [Admin. Proc. File No. 3- ]